Legal Update: Special Education and Related Issues During School Closure Due to COVID-19 Pandemic

The Wisconsin Department of Health Services (DHS) ordered all public and private schools closed from March 18, 2020, through April 6, 2020, due to the health emergency caused by COVID-19.  DHS extended the school closures on March 17, 2020, for the “duration of the health emergency or until a subsequent order lifts this specific restriction.”  Both orders permit school districts to offer virtual instruction to pupils. At this time, it is unknown when schools will resume normal operations.  The following are answers to frequently asked questions about special education obligations based on the latest guidance from the U.S. Department of Education, Wisconsin Department of Public Instruction (DPI), and other agencies. 

What are a school district’s obligations to provide special education and related services to students with disabilities during school closures caused by the current health emergency?

School districts are not required to provide special education and related services during the school closure if the school district does not provide any educational services to general education students.  However, school districts may have other obligations toward certain students with disabilities.

School districts that choose not to provide educational services during the school closure should identify students with disabilities who may need extended school year (ESY) services during the school closure.  Typically, individualized education program (IEP) teams consider ESY services over the summer, but ESY may be appropriate during other types of breaks, including the current school closure.

School districts should identify students with disabilities, who currently receive ESY over the summer, and determine whether similar services are appropriate during the school closure.  Students may qualify for ESY services during the school closure even though they did not qualify for ESY services in the past.  ESY services provided during the school closure should be documented in the IEP.  DPI also advises that changes to the IEP can be made by convening the IEP team or, if the parents agree, documented on an I-10 Notice of IEP Changes Without a Meeting.  

Ordinarily, DPI does not allow school districts to revise IEPs without a meeting if the revisions constitute a change of placement.  However, DPI has recognized the unique nature of the current public health emergency and advised that school districts may use the I-10 Notice of Changes to an IEP Without a Meeting to document IEP revisions, including a change of placement, during the school closure.  The I-10 form may only be used in lieu of an IEP meeting if the parents agree to the change.

School districts that choose to provide educational services for general education students during the school closure through virtual instruction or other alternative learning methods should focus on providing accommodations, such as text to speech assistive technology or large text formatting, that allow students with disabilities to access the educational services offered to all general education students. School districts should also consider alternatives to providing special education and related services in person.  Specialized instruction and related services may be provided virtually through video conferencing services or other online environments that provide direct interaction between students with disabilities and appropriate staff.

School districts should review all IEPs to identify students with disabilities who are capable of receiving special education and related services in a virtual or distance learning environment.  School districts should also consider family circumstances that may limit or prevent a student from access special education or related services, such as limited or lack of internet access.  School districts may need to provide students with disabilities devices, such as Chromebooks or personal internet hotspots, to access their education virtually.

The school districts may not be able to provide all of the services in a student’s IEP.  In those situations, school districts should send parents and guardians written notice identifying educational services that are unavailable during the school closure.  The written notice should also explain that the student’s IEP team will convene once school reopens to consider what, if any, compensatory education are appropriate.

How should school districts address compensatory education once schools reopen?

Assessing student progress towards IEP goals and considering compensatory education after schools reopen will be a priority regardless of what educational services school districts offer during the school closure.  A student’s IEP team is responsible for determining what, if any, compensatory education are necessary after schools reopen.  There are no statutory or regulatory criteria IEP teams must apply to determine when compensatory education are necessary.  IEP teams should evaluate whether a student met IEP goals and what services were unavailable during the school closures to determine whether compensatory education is necessary.  IEP teams may also consider what supports a student received during the school closure from other sources, such as the student’s parents or private educational services. 

Some students with disabilities may not need compensatory education.  However, the Office for Special Education Programs (OSEP) and DPI have indicated that the duration of a school’s closure will impact the determination that compensatory education is necessary.  When schools are scheduled to reopen, IEP teams should consider compensatory education for all students with disabilities and document their decisions within the IEP documents.   

Are school districts required to convene IEP meetings to revise Student IEPs during the school closure?

School districts should individually assess their ability to implement a student’s IEP using an alternative method, such as a virtual or distance learning environment.  School districts that determine some or all special education or related services cannot be provided during the school closure should provide written notice to parents as soon as possible to advise them that the IEP team will consider compensatory education when school resumes. 

School districts that determine alternative or additional educational services are necessary for students with disabilities during the school closure should contact parents to discuss possible revisions to a student’s IEP.  The school district and parents can agree to revise the IEP without an IEP meeting and document the revisions that apply during the school’s closure on an I-10 form.  If the school district and parents do not agree, the school district must determine whether to convene an IEP meeting or provide written notice that some or all services will not be provided during the school closure.  

Are school districts required to comply with procedural timelines under the IDEA and Wisconsin law for evaluations, initial IEPs, and annual IEP reviews?

DPI has advised school districts that the “student not available” exception for evaluation timelines applies where IEP teams do not have sufficient information to determine eligibility due to a school closure.  For evaluations that were in progress when schools closed, the IEP team must determine whether it has gathered sufficient data to determine eligibility.  The IEP team should determine the student’s eligibility if it has gathered sufficient data even though some assessments are incomplete.  The IEP team should also develop the initial IEP even if decisions regarding some services, such as physical therapy or occupational therapy, cannot be made due to incomplete assessments.  In those situations, the IEP team should complete the assessments once school reopens. 

Neither DPI nor OSEP has issued guidance on annual IEP meeting guidelines.  School districts should continue to conduct annual IEP meetings in conformance with annual meeting timelines during school closures until either DPI or OSEP issue guidance on the issue. 

IEP meetings may fit within the exceptions to DHS’ order prohibiting mass gatherings of more than ten (10).  However, DPI recommends that school districts convene any necessary IEP meetings virtually or through teleconference while schools remain closed and DHS’s order remains in place.